In Home Taxation Services Pty Ltd ATF KMH Tax & Business Solutions (Migration)

In Home Taxation Services Pty Ltd ATF KMH Tax & Business Solutions (Migration) [2017] AATA 435 (20 March 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  In Home Taxation Services Pty Ltd ATF KMH Tax & Business Solutions
CASE NUMBER:  1603431
DIBP REFERENCE(S):  BCC2015/3104172
MEMBER:Christopher Smolicz
DATE:20 March 2017
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 20 March 2017 at 9:01am

CATCHWORDS
Migration – Nomination – Subclass 457 – Genuine position – Taxation Accountant – Vacancy not advertised – Applicant not working in nominated position
LEGISLATION
Migration Act 1958, s.140GB
Migration Regulations 1994, Schedule 2, r 2.72, r 2.73

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 February 2016 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 23 October 2015.
A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) because the delegate was not satisfied that the position associated with the nominated occupation(Taxation Accountant ANZSCO 221113) is genuine. As a consequence the related subclass 457 visa application lodged by Ms Jaya Sidhu (the visa applicant) was also refused.[1] The applicant and Ms Sidhu have applied to the Tribunal to review the Department’s decisions. The applicant and Ms Sidhu are represented by the same migration agent.
[1] AAT case number 1603431
The Tribunal listed a combined hearing on 24 February 2017 with AAT files 1603431 and 1605355. Mr Mark Hauptman, gave evidence on behalf of KMH Tax and Business Solutions (KMH). The Tribunal also received oral evidence from Mr Shammi Batra, a Senior Associate at KMH. Ms Sidhu did not attend the hearing. The Tribunal was provided with a letter from Ms Sidhu’s treating doctor which states that she pregnant and recently experienced an incident and had to be admitted to Flinders Medical Centre. The letter states “Could you please take this into consideration re her appearance in court this Friday. If the court allows, I would recommend a family member to sit in her place.” The Tribunal questioned the migration agent about Ms Sidhu’s condition. The Tribunal was advised by the agent that Ms Sidhu’s younger son threw a ball at her stomach which caused her distress and she would not be attending the hearing.
The Tribunal conducted the hearing only in relation to file 1603431.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
It was submitted KMH is a growing accounting firm operating in the service industry. The business represents 341 business and 2,026 individual clients. In the 2015 financial year the business billed $579,000 and in the 2016 financial year billing was $704,105. In the 2016 financial year the business had a total income of $636,243 and business paid $188,341 in wages and $115,572 in contract payments.
Mr Hauptman is the director and owner of the business. He is a registered tax agent and Certified Public Accountant (CPA). The Tribunal was told that the business also employs the following people:
·Sammi Batra, Senior Associate/Partner who is a tax agent and Charted Accountant employed on a base salary of $120,000.
·Rafi Khan, full time qualified accountant/bookkeeper with a base salary of $50,000.
·Raman Batra, part time bookkeeper who does not have full accounting qualifications and is paid a base salary of $20,000.
·Azmat Janjua, casual accountant who does not have full accounting qualifications
·Two contract accountants (Mark Brandon and Shushil Gupta)
·Two administrative officers (Helen Cassar and Karen Hauptman)
It was submitted that all current employees are Australian citizens and the business has not previously sought to any sponsor overseas workers.
The Tribunal questioned Mr Hauptman why there was a need for the business to sponsor a tax accountant under the 457 visa program.
The Tribunal was told that the visa applicant was married to Mr Gurpreet Singh Sidhu. The Tribunal questioned Mr Hauptman if there was any family connection between the visa applicant and his business.
Mr Hauptman said that the position was not created to secure a visa outcome for the nominee. The nominee is not related to any of the individuals working in KMH. The visa applicant has not previously worked for KMH and came to their attention as a potential employee because she was doing bookkeeping for a client of the business. According to Ms Sidhu’s resume in the period 2013 to 2015 she was working as an Office Manager for Jel Transport Pty Ltd (Jel). [2]
[2] ASIC records confirm that Ms Sidhu’s husband was a director of Jel.
Mr Hauptman said that the business had previously employed an accountant who had left the business in about June 2015 and a vacancy became available.
Mr Hauptman said that KMH did not advertise for the position. It was claimed that they only had some verbal consultation with “Hayes recruiting group” who did not have a suitable applicant. No evidence was provided about the nature of the verbal communication with Hayes or when it occurred.
It was submitted that the visa applicant was offered the position of Junior Accountant in September 2015 with a base salary of $55,000 and worked for the KMH until the nomination was refused in February 2016.
The Tribunal notes that on 3 September 2015 Mr Hauptman wrote to Ms Sidhu confirming that an agreement was reached whereby she would commence full-time employment as a Taxation Accountant on 3 September 2015 for a period of 4 years. The standard conditions of employment were 4 weeks annual leave per annum and 2 weeks sick leave.
In written submissions Mr Hauptman said that after the nomination was refused in February 2016 the visa applicant ceased her work for KMH for “multiple reasons”.
The Tribunal asked Mr Hauptman to explain when and why the visa applicant ceased working for KMH. The Tribunal was provided with a number of different explanations during the hearing:
·Mr Hauptman claimed that the visa applicant did not cease working at KMH. He said that visa applicant’s mother passed away and she had to return to India for three months. The Tribunal noted that according to the Department’s movement records Ms Sidhu departed Australia on 30 April 2016 to 14 June 2016. The Tribunal told Mr Hauptman it finds such a lengthy period of bereavement leave unusual. The Tribunal was told that Ms Sidhu had to spend time with her only sister in India.
·Subsequently Mr Hauptman said that the visa applicant has not worked in the business since about the middle of November 2016.
·Mr Batra said that the visa applicant retuned from overseas she had some sciatic pain associated with her pregnancy and took some time off work.
·Mr Batra said in the lead up to Christmas and January 2017 the business was quiet and it was decided that it was not necessary for the visa applicant to return to work.
The Tribunal requested Mr Hauptman to provide the Tribunal with Ms Sidhu’s payslips and KMH’s bank accounts to confirm the period she actually worked for KMH.
The Tribunal explained to Mr Hauptman that it was concerned whether there was a genuine need for the nominated position of Taxation Accountant in the business in light of the fact that Ms Sidhu ceased working in the business. The Tribunal told Mr Hauptman that despite the recent medical incident it found it concerning that the visa applicant was not working in the nominated position after having entered into a full time contract on 1 September 2015. The Tribunal was told that the visa applicant was currently on “unpaid leave”.
In post hearing submissions the Tribunal was provided with Ms Sidhu’s banks statements, payslips and pay history. The Tribunal finds that the evidence about Ms Sidhu’s absence provided at the hearing is inconsistent with the visa applicant’s pay history.
The pay history confirms that the visa applicant was paid by KMH in the period 9 September 2015 to 16 March 2016. It is clear from the pay history that Ms Sidhu only worked for KMH for about six and a half months and never returned back to work after she departed Australia in April 2016. She has not been paid by KMH since 16 March 2016. Ms Sidhu’s bank statements also disclose that she continued to be paid by Jel up until 18 November 2015 which seem inconsistent with her being a full time employee at KMH.
The Tribunal was also provided with an email from Mr Hauptman to Ms Sidhu dated 21 March 2016 which states that he has taken into account her two weeks leave and approved her leave without pay from 17 March 2016 “with indefinite extension of this leave to end of May” so she can return to India and make personal arrangements. No further explanation was provided about why Ms Sidhu did not return to work.
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The Tribunal notes that Ms Sidhu ceased working at KMH in March 2016 and has not returned to work for about 12 months. She is currently expecting to give birth in mid-March 2017. The Tribunal accepts that there are genuine reasons why Ms Sidhu is currently not working given she is in her final trimester of pregnancy. The Tribunal also accepts that there may have been legitimate reasons why Ms Sidhu travelled to India for bereavement leave.
The Tribunal notes however that after returning from India in June 2016 Ms Sidhu never returned to work for KMH. The Tribunal does not accept that Ms Sidhu’s prolonged absence from work can be attributed to her bereavement or her pregnancy. The Tribunal finds that no satisfactory explanation was provided explaining why Ms Sidhu did not return to work after June 2016. The Tribunal was not provided with any other evidence regarding earlier medical issues related to her pregnancy when she returned from India in June 2016.
In particular the Tribunal is concerned about Mr Batra’s evidence that KMH did not require Ms Sidhu to attend work during the Christmas break because it was a quiet time in the office. Mr Batra’s comments seem inconsistent with Ms Sidu’s full-time employment contract.
The Tribunal finds that if there was a genuine need for the position of Taxation Accountant at KMH Ms Sidhu would have been employed in the nominated position in the period leading up to her pregnancy. This did not happen. In the circumstances having considered the evidence the Tribunal is not satisfied that there is a genuine need for the position of Taxation Accountant at KMH.
For these reasons the requirements of r.2.72(10)(f) are not met.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Christopher Smolicz
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)     the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)    the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)     the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)    the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)     there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)    the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)     there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)    the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions that:
(i)     are provided; or
(ii)    would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)     are provided; or
(ii)    would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)     the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)    if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)    the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)     the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)    if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)    the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i) the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)    if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii) the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)    unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)     the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)    the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)     the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and
(ii)    the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)     the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and
(ii)    the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2017] AATA 435

20 March 2017

Key Legal Topics

Areas of Law

Immigration

Tax Law

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction